C.B.I vs Keshub Mahindra

C.B.I. & Ors. ... Petitioner(s)

versus

Keshub Mahindra etc. etc. ...Respondent(s)

O R D E R

S.H. KAPADIA, CJI

1. These curative petitions are filed by Central Bureau of

Investigation for recalling the judgment and order dated

13.9.1996 of this Court in Keshub Mahindra vs. State of

M.P. (Criminal Appeal Nos. 1672-1675 of 1996 decided on

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13.9.1996 reported in 1996 (6) SCC 129), on the following

premises :

(i) When this Court, by the said judgment dated 13.9.1996

quashed the charges framed against accused Nos. 2 to 5,

7 to 9 and 12 under Sections 304 (Part II), 324, 326 and

429 IPC and directed the trial court to frame charges

under Section 304A IPC, this Court had before it

adequate material to make out prima facie, an offence

chargeable under Section 304 (Part II) IPC. Therefore,

this Court committed a serious error in ignoring such

material and quashing the charge under Section 304

(Part II) IPC.

(ii) The evidence placed in support of the charge under

Section 304A IPC during the trial of the said accused

before the learned Chief Judicial Magistrate, Bhopal

showed prima facie that the said accused had committed

offences punishable under Section 304 (Part II) IPC. But

for the said judgment of this Court dated 13.9.1996, the

learned Magistrate would have, by taking note of the said

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material, committed the case to the Court of Sessions

under Section 323 of the Code of Criminal Procedure (for

short `the Code'). However, in view of categorical finding

recorded by this Court, in its binding judgment dated

13.9.1996 that there was no material for a charge under

Section 304 (Part II) IPC and consequential quashing of

the said charge, with a direction to frame the charge

under Section 304A IPC, the learned Magistrate was

barred from exercising his judicial power under Section

323 of the Code, even though the Code vested the

jurisdiction in him to alter the charge or commit the case

to the Court of Sessions as the case may be, on the basis

of evidence that came on record during the trial.

(iii) The judgment dated 13.9.1996 therefore resulted in

perpetuation of irremediable injustice necessitating filing

of the curative petitions seeking recall of the judgment

dated 13.9.1996.

4 2. On the night of December 02, 1984 there was a massive

escape of lethal gas from the MIC storage tank at Bhopal plant

of the Union Carbide (I) Ltd. (UCIL) into the atmosphere

causing the death of 5,295 people leaving 5,68,292 people

suffering from different kinds of injuries ranging from

permanent total disablement to less serious injuries. On the

day following the incident, the SHO, Hanuman Ganj Police

Station, suo moto, registered a Crime Case No. 1104 of 1984

under Section 304A IPC. On December 06, 1984 investigation

was handed over to the CBI, which investigation stood

completed, resulting in filing of charge sheets by the CBI in

the Court of C.J.M., Bhopal on December 01, 1987. Since the

charge sheets inter alia alleged commission of offence under

Sections 304, 324, 326, 429 read with Section 35 of IPC, the

case was committed by the C.J.M. to the Sessions Court as

Sessions Case No. 237 of 1992 (See : Order dated 30th April,

1992). On 8th April, 1993, the 9th Additional Sessions Judge,

Bhopal passed an order framing charges against the accused

Nos. 5 to 9 under Sections 304 (Part II), 324, 326 and 429 of

5 IPC and against accused Nos. 2, 3, 4 and 12 under the very

same Sections but with the aid of Section 35 of IPC. It may be

mentioned that at the time of framing of charge, the Court had

before it, accused Nos. 2 to 9 and accused No. 12 (UCIL)

whereas accused No. 1 (Warren Anderson) was absconding

and the Court was also unable to bring before it the other two

companies, UCC and Union Carbide Eastern Inc., accused

Nos. 10 and 11.

3. The accused after having unsuccessfully challenged the

order framing charge by the Court of Sessions before the

Madhya Pradesh High Court, brought the matter to this Court

in four separate appeals in which the leading case was Appeal

(Cri.) No. 1672 of 1996 filed at the instance of accused No. 2

which stood ultimately disposed of by the judgment of the

Division Bench of this Court dated September 13, 1996 in the

case of Keshub Mahindra (supra). This Court held that on

the material produced by the prosecution before the Trial

Court at the stage of framing of charges, no charges could

have been framed against the accused under Section 304 (Part

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II) or under Sections 324, 326, 429 with or without the aid of

Section 35 IPC and it accordingly quashed the charges framed

by the Sessions Court and directed that on the material led by

the prosecution the charge under Section 304A IPC could be

made out against accused Nos. 5, 6, 7, 8 and 9 and under the

same sections with the aid of Section 35 against accused Nos.

2, 3, 4 and 12. Applications seeking leave to file a review

petition being Criminal Misc. Petition Nos. 1713-16 of 1997 in

a proposed review petition stood dismissed on March 10,

1997. These applications were filed jointly by Bhopal Gas

Peedith Sangharsh Sahyog Samiti (BGPSSS), Bhopal Gas

Peedith Mahila Udyog Sangathan (BGPMUS) and Bhopal

Group for Information and Action (BGIA). The CBI/State of

M.P. did not question the said 1996 judgment or filed any

review petition under Article 137 of the Constitution and

instead proceeded for the next 14 years to prosecute the

accused under Sections 304A, 336, 337, 338 read with Section

35 IPC. It is only on 26th April, 2010, after the defence

evidence stood concluded and after conclusion of the oral

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arguments by the Senior Public Prosecutor, that, a petition

was filed jointly by BGPSSS and BGPMUS under Section 216

Cr.P.C. for enhancement of the charge to Section 304 (Part II)

IPC. This application was not supported by CBI. The said

application was rejected by the C.J.M. on the same day.

However, this order of the C.J.M. was also never challenged

under Section 397/399 or under Section 482 Cr.P.C.

Ultimately on June 7, 2010 Criminal Case No. 1104 of 1984

stood disposed of by the C.J.M. vide his judgment convicting

accused Nos. 2 to 5, 7 to 9 and 12 under Sections 304A, 336,

337, 338 read with Section 35 IPC and sentencing them to two

years' imprisonment. On June 29, 2010 Criminal Appeal No.

369 of 2010 was filed by State of M.P. before the Court of

Sessions with a prayer for enhancement of sentences under the

existing charges. On the same day the State of M.P. also filed

Criminal Revision Application No. 330 of 2010 before the Court

of Sessions under Section 397 Cr.P.C., challenging the alleged

failure of the C.J.M. to enhance the charges to Section 304 (Part

II) in exercise of his jurisdiction under Section 216 Cr.P.C., and

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to commit the trial of the case to Sessions under Section 323

Cr.P.C. and inter alia praying for a direction to enhance charges

and commit. On July 29, 2010 Criminal Appeal No. 487 of 2010

was filed by the CBI before the Court of Sessions for

enhancement of sentences under the existing charges. On 23rd

August, 2010, CBI filed the criminal revision only after the

present curative petitions were filed before this Court on August

2, 2010. All the appeals and revisions remain pending before the

Court of Sessions.

4. It is clear to us that in the criminal revisions filed by the

CBI and the State of M.P. the legal position is correctly stated.

But the curative petitions are based on a plea that is wrong and

fallacious. As noted above, one of the main planks of the

curative petitions is that even though in course of trial before the

Magistrate, additional evidences have come on record that fully

warrant the framing of the higher charge (s) and the trial of the

accused on those higher charges, as long as the 1996 judgment

stands the Sessions Court would feel helpless in framing any

higher charges against the accused in the same way as the trial

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court observed that in view of the judgment of the Supreme

Court no court had the power to try the accused for an offence

higher than the one under Section 304A of IPC. The assumption

is wrong and without any basis. It stems from a complete

misapprehension in regard to the binding nature of the 1996

judgment. No decision by any court, this Court not excluded,

can be read in a manner as to nullify the express provisions

of an Act or the Code and the 1996 judgment never intended to

do so. In the 1996 judgment, this Court was at pains to make it

absolutely clear that its findings were based on materials

gathered in investigation and brought before the Court till that

stage. At every place in the judgment where the Court records

the finding or makes an observation in regard to the appropriate

charge against the accused, it qualifies the finding or the

observation by saying "on the materials produced by the

prosecution for framing charge". "At this stage", is a kind of a

constant refrain in that judgment. The 1996 judgment was

rendered at the stage of sections 209/228/240 of the Code and

we are completely unable to see how the judgment can be read to

say that it removed from the Code sections 323, 216, 386, 397,

10 399, 401 etc. or denuded a competent court of the powers under

those provisions. In our view, on the basis of the material on

record, it is wrong to assume that the 1996 judgment is a fetter

against the proper exercise of powers by a court of competent

jurisdiction under the relevant provisions of the Code. If

according to the curative petitioner, the learned Magistrate failed

to appreciate the correct legal position and misread the decision

dated 13.9.1996 as tying his hands from exercising the power

under Section 323 or under Section 216 of the Code, it can

certainly be corrected by the appellate/revisional court. In fact,

the revision petitions though belatedly filed by the State of M.P.

and the CBI (which are still pending) have asserted this position

in the grounds of revision. Moreover, no ground falling within

the parameters of Rupa Ashok Hurra vs. Ashok Hurra 2002 (4)

SCC 388 is made out in the curative petitions. Also, no

satisfactory explanation is given to file such curative petitions

after about 14 years from 1996 judgment of the Supreme Court.

The curative petitions are therefore dismissed.

11 5. Nothing stated above shall be construed as expression of

any view or opinion on the merits of the matters pending before

the learned Sessions Judge, Bhopal.

.................................CJI

(S. H. Kapadia)

...................................J.

(Altamas Kabir)

...................................J.

(R.V. Raveendran)

...................................J.

(B. Sudershan Reddy)

...................................J.

(Aftab Alam)

New Delhi;

May 11, 2011